Comparison of writs by Supreme and high Court
Q. Which of the following is/are true?
1) Writs have been borrowed from English law.
2) Territorial jurisdiction of high court to issue writs is lower than that of Supreme court
3) Writ jurisdiction of high court of lower than that of Supreme court
4) Supreme Court cannot refuse to exercise its writ jurisdiction- Published on 21 Feb 17a. 1, 2 and 4
b. 1, 2 and 3
c. 3 and 4
d. All of the above
ANSWER: 1, 2 and 4
- The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
- The Parliament (under Article 32) can empower any other court to issue these writs.
- Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs.
- Article 226 now empowers all the high courts to issue the writs.
- These writs are borrowed from English law where they are known as ‘prerogative writs’.
- They are so called in England as they were issued in the exercise of the prerogative of the King who was, andis still, described as the ‘fountain of justice’.
The writ jurisdiction of the Supreme Court differs from that of a high court in three respects :
1. The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose. Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of high court.
2. The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction. Thus, the territorial jurisdiction of the Supreme Court for issuing writs is wider than that of a high court.
3. A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction. Article 32does not merely confer power on the Supreme Court as Article 226 does on a high court to issue writs. The Supreme Court is constituted as a defender and guarantor of the fundamental rights.
